Docket: IMM-878-15
Citation:
2016 FC 14
Ottawa, Ontario, January 7, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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HENRY MAJEBI,
DAISY OYIEAMED SULEMAJEBI, MARIAN OMONIGHO SULEMAJEBI, CHANTEL RECHIA
SULEMAJEBI
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Henry Majebi and his three children have brought
an application for judicial review of a decision of the Refugee Appeal Division
[RAD] of the Immigration and Refugee Board. The RAD confirmed the decision of
the Refugee Protection Division [RPD] that Mr. Majebi and his children are
excluded from refugee protection pursuant to s 98 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA] and Article 1E of the United
Nations Convention Relating to the Status of Refugees, Can TS 1969 No 6
[Convention]. This is because they were found to have residency status
substantially similar to that of Italian nationals at the time their claims
were heard by the RPD, and they therefore did not need refugee protection in
Canada.
[2]
For the reasons that follow, I have concluded
that the RAD reasonably rejected new evidence that was offered by Mr. Majebi
and his children in support of their appeal. I have also found that it was open
to the RAD to assess their residency status as of the date of the hearing
before the RPD, rather than the date of the RPD’s decision. The application for
judicial review is therefore dismissed.
II.
Facts
[3]
Mr. Majebi is a citizen of Nigeria. He claims to
be bisexual. He sought refugee status in Canada based on the following
allegations.
[4]
Mr. Majebi moved from Nigeria to Italy in 1993,
where he met his wife Julie Imade Okolo. In 1996, Ms. Okolo was granted
temporary resident status in Italy. Beginning in 2002, Mr. Majebi held
permanent residence status in Italy.
[5]
Mr. Majebi and Ms. Okolo have three children:
Daisy, Marian and Chantel. The children were born in Italy and in the United
Kingdom. All three children are citizens of Nigeria and no other country.
[6]
In July 2012, during a family holiday in
Nigeria, Mr. Majebi says that he was confronted about his bisexuality. Members
of his extended family threatened to circumcise his wife and children in order
to “cleanse the family”.
[7]
After returning to Italy, Ms. Okolo was
threatened by sex trade workers. They demanded money because she had refused to
work as a prostitute after they assisted her in leaving Nigeria and
establishing herself in Italy.
[8]
Mr. Majebi maintains that he and his family now
fear persecution in both Nigeria and Italy.
[9]
On June 7, 2013, Mr. Majebi fled Italy with his
wife and children. They arrived in Canada via the United States on July 29,
2013. They claimed refugee protection on August 13, 2013.
[10]
In a decision dated June 25, 2014, the RPD
dismissed the refugee claims of Mr. Majebi, Ms. Okolo and all three children.
The RPD found that at the time of the hearing, they had residency status that
was substantially similar to that of Italian nationals, and they were therefore
excluded from receiving refugee protection pursuant to s 98 of the IRPA and
Article 1E of the Convention. Pursuant to these provisions, refugee protection
will not be conferred if the competent authorities in the country where a
person has taken residence recognize the person as having the rights and
obligations which accompany the possession of nationality of that country.
[11]
Mr. Majebi lost his permanent resident status in
Italy on June 7, 2014, after being absent from that country for twelve
consecutive months. Mr. Majebi’s children held temporary resident permits based
on their parents’ status in Italy. Daisy lost her status on November 27, 2013,
and Marian and Chantel lost theirs on May 31, 2014.
[12]
Mr. Majebi, Ms. Okolo and their children
appealed the RPD’s decision to the RAD. They argued that the RPD had
incorrectly assessed their residency status at the time of the hearing, rather
than at the time their refugee claims were decided. In support of their appeal,
they sought to adduce new evidence regarding their circumstances, in particular
the loss of their status in Italy.
[13]
In a decision dated January 28, 2015, the RAD
declined to admit the new evidence. The RAD allowed Ms. Okolo’s appeal because
she had only temporary resident status in Italy, which was not substantially
similar to the status enjoyed by Italian nationals. Her claim was returned to
the RPD for re-determination. However, the RAD upheld the RPD’s decision with
respect to Mr. Majebi and his children, finding that their status was
substantially similar to that of Italian nationals at the time of the hearing
before the RPD.
III.
Issues
[14]
This application for judicial review raises the
following issues:
A.
Was the RAD’s refusal to admit the new evidence
reasonable?
B.
Did the RAD misapply Article 1E of the
Convention?
IV.
Analysis
A.
Was the RAD’s refusal to admit the new evidence
reasonable?
[15]
Questions regarding the admissibility of new
evidence before the RAD are subject to review by this Court against the
standard of reasonableness (Singh v Canada (Minister of Citizenship and
Immigration), 2014 FC 1022 at paras 36-42 [Singh]; Khachatourian
v Canada (Minister of Citizenship and Immigration), 2015 FC 182 at para
37).
[16]
In support of their appeal, Mr. Majebi and his
children submitted three new pieces of evidence pursuant to s 110(4) of the
IRPA: (i) an affidavit sworn by Mr. Majebi, which the RAD rejected because it
repeated evidence that was already in the record; (ii) an affidavit sworn by
Ms. Okolo, which the RAD rejected because it repeated evidence that was already
in the record or was immaterial; and (iii) four “certificates of residence”
from Italy, dated December 6, 2013, which indicated that the three children
were under investigation for failing to register their status in Italy.
[17]
The RAD noted that the certificates of residence
were relevant to the question of the children’s status in Italy, which was
central to their refugee claims. However, s 110(4) of the IRPA provides that a
person may present new evidence on appeal only if it arose after the rejection
of the claim; it was not reasonably available at the time of the rejection; or,
if it was reasonably available, the person could not reasonably have been
expected in the circumstances to have presented the evidence at the time of the
rejection. The RAD observed that the documents “were
dated well before the rejection of their claim”, and therefore found
them to be inadmissible pursuant to s 110(4) of the IRPA.
[18]
Mr. Majebi relies on this Court’s decision in Singh
to argue that the RAD must adopt a flexible approach to the admission of new
evidence, and that evidence may be considered “new” if it contradicts facts
that were found to be determinative by the RPD. Mr. Majebi says that the new
evidence contradicted the RPD’s finding that the minor children had residency
status in Italy at the time of the hearing.
[19]
I am satisfied that the RAD applied the correct
test for determining whether the proposed evidence was admissible under s
110(4) of the IRPA. The flexible approach described in Singh concerns
the admissibility of evidence only after the threshold requirements of s 110(4)
of the IRPA have been met (Fida v Canada (Minister of Citizenship and
Immigration), 2015 FC 784 at paras 6-8; Deri v Canada (Minister of
Citizenship and Immigration), 2015 FC 1042 at paras 55-56). Justice Gagné
in Singh acknowledged that the central issue regarding the admissibility
of new evidence is whether “the evidence was not
reasonably available, or that the person could not reasonably … have been
expected in the circumstances to have presented” the evidence before the
RPD (Singh at para 58). The RAD noted that the certificates of residence
pre-dated the rejection of Mr. Majebi’s claim by seven months, and had been
available two months before the date of the final hearing before RPD. The RAD
also noted that Mr. Majebi and his children had failed to provide any reason
why the certificates were not submitted to the RPD before their claims were
denied. It was therefore reasonable for the RAD to reject the evidence in
accordance with the express statutory requirements of s 110(4) of the IRPA.
B.
Did the RAD misapply Article 1E of the
Convention?
[20]
Mr. Majebi says that the proper interpretation
and application of Article 1E of the Convention is a question of law that is
subject to review by this Court against the standard of correctness. According
to the Minister, the reasonableness standard applies. The Minister argues that
this Court owes deference to the RAD’s interpretation of its home statute, the
IRPA, and Article 1E of the Convention, which is closely related to the IRPA.
The Minister notes that s 98 of the IRPA incorporates Article 1E of the
Convention, and accordingly any interpretation of Article 1E amounts to an
interpretation of s 98 of the IRPA.
[21]
In B010 v Canada (Minister of Citizenship and
Immigration), 2015 SCC 58 at para 24, the Supreme Court of Canada observed
that the Federal Court of Appeal has expressed different opinions regarding the
standard of review that applies to questions of statutory interpretation that
involve a consideration of international instruments. It has sometimes applied
the correctness standard (Hernandez Febles v Canada (Citizenship and
Immigration), 2012 FCA 324 at paras 22-25), and sometimes the
reasonableness standard (B010 v Canada (Citizenship and Immigration),
2013 FCA 87 [B010]).
[22]
Here, the RAD was interpreting its home statute,
the IRPA, and a closely-related international instrument, the Convention. There
is a presumption that the standard of review is reasonableness (Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011
SCC at para 24). There is nothing in this case to displace the presumption.
However, the range of reasonable interpretations of a statutory provision may
be narrow (Canada (Attorney General) v Canadian Human Rights Commission,
2013 FCA 75; B010 at para 72).
[23]
The RAD assessed whether Mr. Majebi and his
children had residency status similar to that of Italian nationals at the time
their claims were heard by the RPD. The RAD relied on the Federal Court of
Appeal’s decision in Canada (Citizenship and Immigration) v Zeng, 2010
FCA 118 [Zeng], rather than this Court’s decision in Dieng v Canada
(Minister of Citizenship and Immigration), 2013 FC 450 [Dieng]. Mr.
Majebi points out that Zeng was decided before the creation of the RAD,
and argues that the RAD should have applied the test articulated in Dieng,
pursuant to which a claimant’s status is to be determined on the day the claim
is decided (Dieng at para 21).
[24]
Pursuant to the test found in Zeng, the
RPD is required to consider all relevant factors up to the date of the hearing
to determine whether the refugee claimant has status substantially similar to
that of the nationals of the country where the claimant has taken residence. If
the claimant has status similar to that of other nationals, the claimant is excluded
by Article 1E of the Convention. If the claimant does not have similar status,
the RPD must look at whether the claimant previously had status and lost it, or
had access to the status and failed to acquire it. If the answer is no, the
claimant is not excluded under Article 1E. If the answer is yes, the RPD must
consider and balance various factors, including whether the reason for the loss
of status was voluntary or involuntary, whether the claimant could return to
the country of residence, and the risk the claimant would face in the home
country.
[25]
The RPD issued its decision on June 25, 2014. By
this date, it was clear that Mr. Majebi and his children had lost their right
to return to Italy because Mr. Majebi’s status had expired on June 7, 2014. Mr.
Majebi submits that the RAD committed a reviewable error by failing to fully
assess the evidence as of the date of the appeal.
[26]
The role of the RAD when it considers an appeal
of a decision of the RPD is not yet settled. This Court’s decision in Huruglica
v Canada (Minister of Citizenship and Immigration), 2014 FC 799 [Huruglica]
is currently before the Federal Court of Appeal.
[27]
In Dhillon v Canada (Minister of Citizenship
and Immigration), 2015 FC 321 [Dhillon], Justice LeBlanc held that
an appeal before the RAD is directed at the decision of the RPD, and should
therefore be conducted on the basis of the record as it existed at the time of
the RPD’s decision. Unless the RAD accepts new evidence, the statutory
framework that governs an appeal before the RAD requires the RAD to concern
itself solely with errors of law, of fact, or of mixed fact and law (Dhillon
at para 18). However, in Alyafi v Canada (Citizenship and Immigration),
2014 FC 952 [Alyafi] at para 13, Justice Martineau held that it could
probably be argued that the RAD appeal “is a kind of de
novo appeal.”
[28]
In Canada (Minister of Citizenship and
Immigration) v Alsha’bi et al, 2015 FC 1381 [Alsha’bi] at para 36,
Justice Strickland discussed a number of decisions of this Court regarding the
role of the RAD, including Alyafi, before concluding as follows:
Thus, it can perhaps more accurately be
stated that the state of the law on this point remains a live issue, as opposed
to the Minister’s characterization that the Court has actively refrained from
describing the RAD appeal process as de novo. Further, based on Alayfi,
until the issue is determined by the Federal Court of Appeal or the Supreme
Court of Canada, the RAD will not be found to have necessarily erred by
applying either approach (Alyafi at paras 51-52; Djossou [2014 FC
1080] at para 91; Taqadees v Canada (Citizenship and Immigration), 2015
FC 909 at paras 9-13).
[29]
In Alsha’bi, which involved the loss of
status in a foreign country between the time of the RPD’s decision and the
appeal before the RAD, Justice Strickland declined to overturn the RAD’s
decision to substitute its view of the correct disposition based on the change
in the appellants’ circumstances. This suggests that the RAD in this case could
have considered Mr. Majebi’s and his children’s loss of residency status in
Italy, and substituted its view of the appropriate disposition given the change
in circumstances following the RPD’s hearing. However, the RAD would then have
had to consider numerous other factors, including whether the loss of residency
status in Italy was voluntary or involuntary. This Court has held that a
claimant’s choice to allow his or her status in a third country to expire
amounts to an impermissible form of asylum-shopping (Canada (Minister of
Citizenship and Immigration) v Choovak, 2002 FCT 573 at paras 15, 17).
[30]
Pending guidance from the Federal Court of
Appeal in Huruglica, and considering Justice LeBlanc’s judgment in Dhillon,
I am unable to find that the RAD wrongly assessed the residency status of Mr.
Majebi and his children as of the date of the hearing before the RPD. This is
the approach taken by the Federal Court of Appeal in Zeng, and I cannot
fault the RAD for following precedent. Even if the RAD could have opted for a
different approach, as the RAD appears to have done in Alsha’bi, it was
not obliged to do so. The approach taken by the RAD in this case was
reasonable.
[31]
Finally, as noted by the Minister, if Mr. Majebi
and his children are unable to return to Italy, they are eligible for a
Pre-Removal Risk Assessment before they can be removed to Nigeria.
V.
Certified Question
[32]
Mr. Majebi asks this Court to certify a question
for appeal. The role of the RAD when it considers an appeal of a decision of
the RPD is before the Federal Court of Appeal in Huruglica. However, I
agree with Mr. Majebi that the question of the date on which residency status
should be assessed for the purposes of exclusion under Article 1E of the
Convention is currently in doubt, and is unlikely to be directly addressed by
the Court of Appeal in Huruglica.
[33]
In Zeng, the Federal Court of Appeal
observed at paragraph 13 that the date “must be fluid
to ensure consideration is given to both the status and the actions of a
claimant throughout,” but did not extend this fluidity beyond the date
of the hearing before the RPD. In Dieng, Justice de Montigny was
prepared to extend the date to the time of the RPD’s decision, although it is
unclear whether he intended to depart from Zeng by doing so. In Alsha’bi,
Justice Strickland declined to overturn the RAD’s decision to substitute its
view of the correct disposition based on the appellant’s loss of residency
status in a third country following the RPD’s decision.
[34]
In my view, this matter would benefit from
clarification by an appellate court. I therefore certify the following question
for appeal:
In
determining whether an individual is excluded from refugee protection under
Article 1E of the United Nations Convention Relating to the Status of
Refugees, is the assessment of whether the individual has the rights and
obligations which are attached to the possession of the nationality of the
country in which the person has taken residence to be made at the time of the
hearing before the Refugee Protection Division [RPD], at the time of the RPD’s
decision, or at the time of any appeal before the Refugee Appeal Division?
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